Ebel v. State

Cite as 2014 Ark. App. 588

ARKANSAS COURT OF APPEALS
DIVISION II
No. CR-14-109

CHRISTOPHER DAVID EBEL Opinion Delivered October 29, 2014
APPELLANT
APPEAL FROM THE BENTON
V. COUNTY CIRCUIT COURT
[NO. CR12-631-2]

STATE OF ARKANSAS HONORABLE BRAD KARREN,
APPELLEE JUDGE

AFFIRMED

RITA W. GRUBER, Judge

Appellant Christopher David Ebel appeals from a conviction for driving while

intoxicated, second offense. Appellant’s sole point on appeal is that the trial court erred in

denying his motion in limine to exclude the results of a breathalyzer test because the arresting

officer did not allow appellant to have an additional, independent blood test administered. We

affirm appellant’s conviction.

Arkansas Code Annotated section 5-65-204(e) (Repl. 2005) provides as follows:

(e)(1) The person tested may have a physician or a qualified technician,
registered nurse, or other qualified person of his or her own choice administer a
complete chemical test in addition to any test administered at the direction of a law
enforcement officer.

(2) The law enforcement officer shall advise the person in writing of the right
provided in subdivision (e)(1) of this section and that if the person chooses to have an
additional chemical test and the person is found not guilty, the arresting law
enforcement agency shall reimburse the person for the cost of the additional chemical
test.
Cite as 2014 Ark. App. 588

(3) The refusal or failure of a law enforcement officer to advise a person of the
right provided in subdivision (e)(1) of this section and to permit and assist the person
to obtain a chemical test under subdivision (e)(1) of this section precludes the
admission of evidence relating to a chemical test taken at the direction of a law
enforcement officer.

When a defendant moves to exclude a test pursuant to section 5-65-204(e)(2), the

State bears the burden of proving by a preponderance of the evidence that the defendant was

advised of his right to have an additional test performed and that he was assisted in obtaining

a test. Kay v. State, 46 Ark. App. 82, 85, 877 S.W.2d 957, 959 (1994). The initial test result

may be admitted into evidence if there was substantial compliance with the statute. Reynolds

v. State, 96 Ark. App. 360, 361, 241 S.W.3d 765, 766 (2006). Furthermore, the officer must

provide only such assistance in obtaining an additional test as is reasonable under the

circumstances presented. Kay, 46 Ark. App. at 85, 877 S.W.2d at 959. Whether the assistance

provided was reasonable under the circumstances is ordinarily a fact question for the trial

court to decide. Id. It is for the trial court to weigh the evidence and resolve the credibility

of the witnesses. Id. We will not reverse the trial court’s ruling on the admission of evidence

absent an abuse of discretion and a showing of prejudice. Graham v. State, 2012 Ark. App.

90, at 7, 389 S.W.3d 33, 37; see also Mhoon v. State, 369 Ark. 134, 136, 251 S.W.3d 244,

246–47 (2007).

We turn to the facts relevant to appellant’s motion in limine. Appellant was arrested

at approximately 1:30 a.m. on December 2, 2011, when Officer Joe Pruitt of the Benton

County Sheriff’s Office saw appellant’s SUV cross the center line four times and decided to

pull him over. Officer Pruitt testified that appellant’s eyes were bloodshot and watery, that

2
Cite as 2014 Ark. App. 588

he had a bottle of Listerine in his hand and smelled strongly of it, that he fell against the car

when he got out, and that he admitted to having drunk “three or four beers.” Officer Pruitt

also testified that appellant walked slowly and swayed. Finally, Officer Pruitt performed two

field-sobriety tests and then took appellant to the county sheriff’s office, where a breathalyzer

test was administered showing that appellant’s blood-alcohol content was .089 percent. The

test was administered at 2:09 a.m. Appellant requested a second test, stating that he had the

means to pay for the test, and Officer Pruitt transported him to Mercy Hospital in Rogers

for a test to be administered for $45. Appellant gave the attendant his debit card, which was

declined twice. He asked Officer Pruitt if he could call his parents in Bella Vista to bring

money to the hospital; Officer Pruitt denied his request.

Appellant filed a motion in limine to exclude the results of the breathalyzer test

pursuant to Ark. Code Ann. § 5-65-204(e) because Officer Pruitt refused to allow him to

call his parents to bring money for the second test. After a hearing, the court denied the

motion, finding that Officer Pruitt had provided appellant with assistance in obtaining the

second test that was reasonable under the circumstances by transporting him to the hospital

and finding that the test was not given was because appellant was unable to pay for it.

The statute required Officer Pruitt to advise appellant of his right to obtain a second

test—and appellant does not dispute that this occurred—and “to permit and assist” him in

obtaining it. The officer need provide only such assistance as is reasonable under the

circumstances. Kay, 46 Ark. App. at 85, 877 S.W.2d at 959. In this case, appellant requested

the second test and told Officer Pruitt that he had the means to pay for the test. Officer Pruitt

3
Cite as 2014 Ark. App. 588

took appellant to Mercy Hospital in Rogers, where appellant’s debit card was declined.

Appellant asked the hospital attendant to run the debit card again, which the attendant did,

and it was again declined. It was after 2:00 in the morning, appellant’s parents lived in another

town, and appellant did not mention needing additional funds for the test until his debit card

was declined. Officer Pruitt had no duty to allow appellant to call his parents to bring money.

Because we cannot say that the trial court clearly erred in finding that Officer Pruitt’s actions

constituted reasonable assistance under the circumstances of this case and in determining that

Officer Pruitt substantially complied with the statute, we hold that the trial court did not

abuse its discretion in denying appellant’s motion in limine.

Affirmed.

WALMSLEY and HARRISON, JJ., agree.

Norwood & Norwood, P.A., by: Doug Norwood and Alison Lee, for appellant.

Dustin McDaniel, Att’y Gen., by: Brad Newman, Ass’t Att’y Gen., for appellee.

4